The marriages solemnised under the Hindu Marriage Act 1955 carries a peculiar problem. A marriage under Hindu Marriage Act can only be dissolved on the grounds specified therein to include adultery, cruelty, desertion, ceased to be a Hindu by converting to another religion, has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the one cannot reasonably be expected to live with the other spouse, suffering from a virulent and incurable form of leprosy or venereal disease in communicable form, has renounced the world by entering a religious order, or has not been heard of as being alive for a period of seven years or more, no cohabitation for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which one was a party, no restitution of conjugal rights after the passing of a decree for restitution of conjugal rights, husband since the solemnisation of marriage was held guilty of rape, sodomy or bestiality, the girl repudiated the marriage after attaining the age of eighteen years in a case where the marriage was solemnised before attaining the age of fifteen years.
The law does not recognise the irretrievably broken marriage as a ground for divorce and the cases where the marriage is dead for all intents.
The problem was recognised by the Law Commission of India in its report of 2009, advised the parliament of India to introduce an amendment in the Hindu Marriage Act to include another ground for grant of divorce being ‘irretrievable breakdown of marriage’ between the parties.
In addition to the recommendations made by the Law Commission of India, the Indian courts have on various occasions, exercised its discretion under the constitution of India and allowed divorce on the ground of ‘irretrievable breakdown of marriage’. The parliament seems to be totally oblivious of the urgent need to correct the anomaly of the law and provide much needed support to the cause of people married under the Hindu Marriage Act and seeking quick and smooth dissolution of the marriage.
This quagmire raises various issues and escalation of dispute between the parties who had made their home in the countries other than India. One or the other party would take a stand in the court primarily on the ground that Hindu Marriage Act does not allow the ‘irretrievable breakdown of marriage’ being a ground of marriage. Such a stand is taken even though the litigating party may be living in the foreign country and in this situation Australia, enjoying all the amenities being offered by the Australian government including but not limited to grants, tax benefits, Centrelink benefits and child support etc.
The immediate reaction of such a stand result in inability of the Judicial Registrar to hear the application for divorce and grant the same in case the conditions of divorce were made out. The matter would then be referred to the Judge for adjudication on the evidence presented before it.
Often it is seen that the party litigating would appoint some family member as an attorney and initiate the proceedings including criminal proceedings without even going to India while continue to enjoy the comforts of Australian life merely as a knee jerk reaction or otherwise arm-twisting exercise to extract financial gains which one may not be otherwise entitled. The approach of the Indian courts and Australian courts in such a situation seems to be in line with the expectations of the private international law which requires that the people of Indian origin should respect the family law jurisdiction of the local court where they ordinarily live rather than implicating each other in multiplicity of litigation.
The Australian courts are cautious of litigious and vindictive nature of litigants from Indian background who process multiple cases in different jurisdictions merely to cause harassment rather than genuinely working out the exit strategy from the bad relationship. The Australian courts have over-written the objection to exercise the jurisdiction under Family Law Act and even directed the party litigating to ensure that the cases filed in India are withdrawn and an affidavit confirming such a withdrawal is filed in the court. A non-compliance tantamount to contravention of the order and the concerned person can be punished for contravention of the order.